Justice asks to keep 'don't ask'

The Obama administration has asked the Supreme Court to leave the military’s “don’t ask, don’t tell” policy in place while it appeals a lower court’s ruling that declared the policy unconstitutional.

The Justice Department filed a legal brief with the high court Wednesday afternoon asking the justices to deny an application by the Log Cabin Republicans which would block discharges and investigations under the 1993 law banning openly gay men and lesbians from serving in the armed forces. (See the brief here.)

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The move comes as President Barack Obama presses Congress to dismantle the law in an upcoming lame-duck session – before Republicans take control of the House and gain power in the Senate in January. However, the brief contends that the White House’s drive to repeal “don’t ask, don’t tell” doesn’t support the Log Cabin Republicans’ argument that a short-lived injunction against the policy should go forward – such a ruling could wreak havoc within the military, the justice department suggests.

“Log Cabin relies heavily on the fact that the President and military leaders have publicly supported repeal of the law. But repeal of an Act of Congress by Congress itself—followed by an orderly and comprehensive transition as may be provided for by Congress, the President as the Commander-in-Chief, and those under the President’s direction — is wholly different from a judicial invalidation of the Act and a judicial command that operates directly and immediately on military and civilian personnel worldwide,” Acting Solicitor General Neal Katyal wrote in the brief.

“Without sufficient time for such training and guidance,” he wrote, “an immediate, court-ordered repeal of the statute would risk disruption to military commanders and service members as they carry out their missions, especially in zones of active combat.”

Katyal’s brief, however, did not refer to evidence that the military, in recent years, has effectively suspended enforcement of “don’t ask” in war zones. In imposing her injunction against the law, U.S. District Court Judge Virginia Phillips cited that practice as evidence that the ban on gay service members is not helpful to combat effectiveness.

Katyal also contends that Phillips never had authority to impose the global ban on enforcement that she did back on October 12. Eight days later, the U.S. Court of Appeals for the 9th Circuit suspended her order, effectively reinstating the policy. However, one judge on the three-judge panel dissented in part, saying he would have left in place the part of Phillips’s order that blocked discharges.

“The sweeping nature of [Phillips’s] injunction constitutes an extraordinary and unwarranted intrusion into internal military affairs,” Katyal wrote. “Even though this case is not a class action, the district court awarded what is in essence class-wide relief.” The Justice Department noted that appeals courts in four judicial circuits have upheld “don’t ask” and one even did so after the Supreme Court indicated in 2003 that laws that discriminate against gays are suspect.